Bergeron v. Francois

United States District Court, W.D. Louisiana, Lafayette Division

March 22, 2018

TERRENCE BERGERONv.GERALD FRANCOIS, ET AL.

REPORT AND RECOMMENDATION

PATRICK J HANNA, UNITED STATES MAGISTRATE JUDGE

Currently
pending is the motion for sanctions pursuant to Fed.R.Civ.P.
37(d), which was filed by the defendants, Gary Francois
(incorrectly identified as Gerald Francois), City of
Patterson, and Patrick LaSalle, the Chief of Police for the
Patterson Police Department. (Rec. Doc. 26). The motion is
opposed. Oral argument was held on March 22, 2018.
Considering the evidence, the law, and the arguments of the
parties, and for the reasons fully explained below, it is
recommended that the motion be granted and this action be
dismissed.

Terrence
Bergeron filed this lawsuit in February 2017. He alleged
that, while he was detained in the Patterson City Jail, he
was assaulted and physically attacked by Gary Francois. He
alleged that Mr. Francois was either an employee of the
Patterson City Police Department or the Patterson City Jail.
Mr. Bergeron further alleged that, following the assault and
attack, the Patterson City Police and/or Patterson City Jail
refused to provide him any medical care. He sued Mr.
Francois, the City of Patterson (in its capacity as the owner
and operator of the Patterson City Jail), the State of
Louisiana (through the City of Patterson and/or Patterson
City Jail), and Patterson Police Chief Patrick Lasalle, in
his individual and official capacities. Mr. Bergeron
contended that his constitutional rights had been violated,
and he also asserted state-law claims.

At the
hearing on the motion for sanctions, the defendants'
counsel explained that the plaintiff had, at some point,
escaped from the Livingston Parish Jail, where he had been
serving a ten-year sentence on Louisiana state-law charges,
and had been picked up in Tennessee on a number of charges,
including a fugitive warrant. Therefore, the defendants
noticed the plaintiff's deposition for December 12, 2017
at the Hawkins County Jail in Rogersville, Tennessee, where
Mr. Bergeron was then incarcerated. However, the plaintiff
bonded out before the deposition date, and the deposition was
canceled.

The
plaintiff's counsel located the plaintiff, and his
deposition was rescheduled for January 19, 2018 at his
counsel's office in Baton Rouge, Louisiana. To facilitate
the plaintiff's travel from Tennessee, the defendants
agreed to split the cost of air travel with the plaintiff,
but the plaintiff elected to drive instead. The evening
before the scheduled deposition, the defendants' counsel
received confirmation from the plaintiff's counsel that
the plaintiff would appear for the deposition. The next day,
the defendants' counsel traveled from Lafayette,
Louisiana to Baton Rouge for the deposition, but the
plaintiff failed to appear. The reasons given for the
plaintiff's failure to appear at the deposition were a
serious ice and snow storm and mechanical problems with his
automobile. His counsel spoke with the plaintiff on the
afternoon of the deposition and the plaintiff agreed to
appear on a future date.

The
defendants filed the instant motion, seeking to recover from
the plaintiff the reasonable expenses and attorneys' fees
incurred in connection with the scheduled deposition and the
filing of the motion. The defendants also renoticed the
plaintiff's deposition for March 19, 2018 at the federal
courthouse in Lafayette, Louisiana. According to the defense
counsel's investigation, the plaintiff had been arrested
twice while on parole for carrying a firearm with the serial
number filed off. Defense counsel therefore thought it would
be prudent to hold the deposition at a location where the
plaintiff would be required to walk through a metal detector
before testifying. It is the understanding of the
defendants' counsel that the plaintiff currently remains
a fugitive.

The
plaintiff's counsel's office contacted the plaintiff
before the newly-scheduled deposition and confirmed that he
planned to appear. However, the plaintiff again failed to
appear, and his attorney has been unable to locate him since
then.

The
plaintiff's counsel stated on the record at the hearing
on March 22, 2018 that the first deposition was properly
noticed and that his office gave the plaintiff actual notice
- orally and in writing - of the scheduling of the second
deposition. This Court therefore finds that both depositions
were properly noticed.

Fed. R.
Civ. P. 37(d)(1)(A)(I) states that the court where an action
is pending may order sanctions if a party fails to appear for
his deposition after being served with proper notice.
“Rule 37 empowers the district court to compel
compliance with Federal discovery procedures through a broad
choice of remedies and penalties, including dismissal with
prejudice.”[1] Rule 37(d)(3) states that when a
party's failure to appear for his deposition is not
substantially justified, the court “must require”
the party, the party's attorney, or both to pay the
reasonable expenses - including attorneys' fees - caused
by the failure to appear unless other circumstances make an
award of expenses unjust. Additionally, a party's failure
to appear for his deposition may also result in other
sanctions, including striking his pleadings in whole or in
part or dismissing the action in whole or in part. A court
has broad discretion under Rule 37(b) to fashion remedies
suited to a party's misconduct with regard to the
discovery process.[2] However, a finding of bad faith or willful
misconduct is generally necessary to support sanctioning a
party by striking his pleadings or dismissing his
case.[3]Therefore, lesser sanctions are generally
favored.[4]

In this
case, it is undisputed that the plaintiff in this lawsuit was
served with proper notice of his deposition twice, and he
failed to appear both times. Based on the information
provided by the plaintiff's counsel concerning the
communications that his office had with the plaintiff prior
to the two scheduled depositions, this Court concludes that
the plaintiff willfully disregarded the deposition notices
and willfully failed to appear for his deposition on two
occasions.

This
Court finds that the plaintiff's failure to appear for
his scheduled depositions was not substantially justified.

This
Court further finds that, under the circumstances of this
case, it would be unjust to order sanctions against the
plaintiff's attorney in the form of expenses and
attorneys' fees. The plaintiff's counsel, David
Bateman, diligently sought to have his client appear for his
deposition on three occasions. In particular, Mr. Bateman
diligently sought to communicate with his client, he
negotiated a sharing of the cost of the deposition that was
scheduled to be held in Baton Rouge, he made his office
available for the deposition that was to be held in Baton
Rouge, he appeared for the deposition that was scheduled to
be held in Lafayette, and he appeared at the hearing on the
motion for sanctions. At the hearing, the defendants'
counsel made it clear that the defendants were seeking
monetary sanctions against the plaintiff personally and not
against the plaintiff's counsel. Given the
plaintiff's current life circumstances, however, this
Court also finds that it would likely be a fruitless exercise
to impose a monetary sanction on the plaintiff in addition to
the other sanction recommended herein.

This
Court further finds that the most appropriate penalty for the
plaintiff's continued disregard of deposition notices
would be dismissal of his lawsuit. Were the Court to order
the plaintiff to appear at a rule to show cause, the Court
would be constrained to notify law enforcement officials of
his presence and facilitate his arrest. Therefore,
particularly in light of his failure to appear twice for
scheduled depositions, it is unlikely that the plaintiff
would appear in Court to explain his prior failures to
appear. The fairest and most efficient method to sanction the
plaintiff for his repeated failures to appear for deposition
and his consequent failure to prosecute his case would be to
dismiss his case, which is authorized by the applicable rule
and appropriate in light of the facts established in this
case.

Accordingly,
IT IS RECOMMENDED that the defendants' motion for
sanctions (Rec. Doc. 26) is GRANTED; and IT IS FURTHER
...

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